United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40757
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GONZALEZ-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1907-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Juan Gonzalez-Lopez (Gonzalez) pleaded guilty to count 1 of
an indictment charging him with entering the United States
illegally following deportation. Gonzalez was sentenced to a 45-
month term of imprisonment and to a three-year period of
supervised release. Gonzalez gave timely notice of his appeal.
Gonzalez challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40757
-2-
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Gonzalez’s argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
in which the Supreme Court held that treatment of prior
convictions as sentencing factors in § 1326(b)(1) and (2) was
constitutional. Although Gonzalez contends that a majority of
the Supreme Court would now consider Almendarez-Torres to be
incorrectly decided in light of Apprendi, “[t]his court has
repeatedly rejected arguments like the one made by [Gonzalez] and
has held that Almendarez-Torres remains binding despite
Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez concedes as
much, but he raises the argument to preserve it for further
review.
AFFIRMED.